Sri. M.S. Nagaraj vs Smt. Shashikala Desai

Aravind Kumar, J.—This is a tenant''s revision petition calling in question judgment and decree passed by Small Causes Judge, Bangalore in S.C. No. 15235/2012 dated 03.07.2013 decreeing the suit for delivery of possession of suit schedule premises. I have heard the arguments of Sriyuths R.A. Devanand, learned Advocate appearing for revision petitioner and M.V. Sundara Raman, learned Advocate appearing for respondent. Perused the order under revision as also the records secured from the trial Court. Parties are referred to as per their rank in the trial Court.

It is the contention of Sri Devanand that proceedings initiated before the Small Causes Court was without jurisdiction. Determination of tenancy is improper and bad in law. Section 2(3)(g) of Karnataka Rent Act, 1999 is attracted and as such, landlord ought to have initiated eviction proceedings under the said Act and could not have sought for a direction to the defendant to deliver possession of the suit schedule premises by filing a small causes suit. Elaborating his submissions, he contends that proceedings initiated against the defendant by filing a suit under Section 26 read with Order 7 Rule 11 CPC is not maintainable and proceedings for eviction ought to have been initiated under Section 27 of the Karnataka Rent Act, 1999. He would draw the attention of the Court to paragraph VII of the plaint to contend that payment of Court fee indicates that plaint is valued as though it is a suit. He would also draw the attention of the Court to paragraph IV of the plaint whereunder the plaintiff has admitted that provisions of Karnataka Rent Act, 1999 are inapplicable and as such, he contends that it can be easily inferred that it is a suit for possession which is also visible from the prayer made in the suit and as such eviction petition ought to have been filed. Hence, he would contend that provisions of Karnataka Rent Act, 1999 is applicable and Court of Small Causes has no jurisdiction to try the suit. He would draw the attention of the Court to Article 4 read with Section 8 of the Small Cause Courts Act, 1964 to contend that plaintiff ought to have initiated eviction proceedings before Small Causes Court and could not have filed a suit for possession.

He would contend that date of commencement of tenancy ought to have been disclosed in the plaint and as to when it would come to an end. He contends that averments made in the plaint discloses that it is month to month tenancy and determination of tenancy as per the legal notice Ex. P-2 dated 18.08.2011 is improper inasmuch as, if tenancy has come to an end at the end of the month, then 15 days clear notice ought to have been given which is not given. He would draw the attention of the Court to the plea of cause of action as pleaded in the plaint wherein it is stated that cause of action of the suit arose on 03.09.2011 which is much prior to completion of 15 days from the end of month on which date tenancy has come to an end according to plaintiff and as such, determination of tenancy is improper He would also submit that there is no pleading as to when was the date of commencement of tenancy and termination of tenancy. He submits in Ex. P-2 it is admitted that notice came to be issued on 18.08.2011 and when it is contended that tenancy comes to an end on the end of calendar month, 15 days time would lapse in the succeeding month i.e., on 15th October 2011 and cause of action pleaded itself would indicate that suit was premature. He would submit only on proper determination of tenancy, it would become juridical possession and as such there is violation of Section 111A of Transfer of Property Act.

He would further submit that Section 2(3)(e) and 2(3)(g) of the Karnataka Rent Act, 1999 have to be read together and it is an inclusion clause and all areas or building falling under the schedule as described under Section 3(c)(1) would fall within the jurisdiction of Small Causes Court which is empowered to adjudicate eviction proceedings and as such, suit in question is not maintainable. In support of his submission, he relies upon the judgment in the case of Abdul Wajid Vs. A.S. Onkarappa, .

Per contra, Sri Sundara Raman, learned Advocate appearing for respondent-landlord would support the judgment and decree passed by trial Court and contends that plea regarding jurisdiction and maintainability of suit ought to have been raised at the first available opportunity and in the instant case, no such plea was raised in the written statement and hence, it is deemed that defendant has waived his right in this regard even if any. He would submit that insofar as jurisdiction of the Small Causes Court to adjudicate suit for possession is concerned is laid to rest by the Full Bench judgment in ABDUL Wajid''s case by Full Bench of this Court (referred to supra) and he would draw the attention of Court to paragraph 86 of the said judgment. He submits that insofar as plea regarding improper determination of tenancy raised by the learned Advocate for defendant is concerned, he submits that sub-section (2) of Section 106 of Transfer of Property Act, 1882 is a complete answer and as such, there is no jurisdictional error committed by the trial Court calling for exercise of revisional jurisdiction by this Court. Hence, he seeks for dismissal of the revision petition.

Having heard the learned Advocates appearing for the parties and on perusal of order under revision as also records secured from the trial Court, I am of the considered view that following points would arise for my consideration.

(1) Whether order of the trial Court dated 03.07.2013 decreeing the suit S.C. No. 15235/2012 suffers from any error either in law or on facts calling for revisional jurisdiction being exercised by this Court?

(2) What order?

RE: POINT NO.(1):

Insofar as plea with regard to Small Causes Court not having jurisdiction to adjudicate a suit for possession and mesne profits in view of Section 2(3)(g) of the Karnataka Rent Act, 1999 empowering Small Causes Court to adjudicate an eviction petition, is being considered, adjudicated and answered by this Court as under:

There is no dispute with regard to landlord and tenant relationship between plaintiff and defendant. There is also no dispute with regard to rate of rent being Rs. 2,500/- per month in respect of petition schedule premises. 8. Plaintiff filed the suit in question on 04.07.2012 seeking for a decree from the Small Causes Court to the defendant to quit and deliver vacant possession of the schedule premises to her and an enquiry with regard to mesne profits under Order 20 Rule 12 CPC for unlawful use and occupation of schedule premises from the date of termination of tenancy till delivery of vacant possession and payment of amount to the plaintiff. The cause of action pleaded in the suit at paragraph VIII would disclose as 18.08.2011 namely date of termination of tenancy and 03.09.2011 when defendant became liable to vacate the schedule property and replied to the legal notice admitting the tenancy and refusing to vacate the schedule premises. On service of summons from the trial Court, tenant appeared and filed his written statement and raised a plea in paragraph 5 that suit is not maintainable; Court has no jurisdiction to try and entertain the suit as the plinth area exceeds 14 sq. mtrs.

As to whether Court of Small Causes would have jurisdiction to entertain a suit for possession and adjudicate the same came to be examined by Full Bench of this Court in the case of Abdul Wajid v. A.S. Onkarappa and has held as under:

Courts of Small Causes are also essentially ''Civil Courts''. This is made very much clear in sub-section (2) of Section 8 of KSCC Act. According to sub-section (2) subject to the exception specified in the Schedule and to the provision of any other law, all suits of a civil nature value of which does not exceed one lakh rupees in the area falling within Bangalore City Corporation and rupees twenty-five thousands in other areas, shall be cognizable by a Court of Small Causes. Section 10 makes Code of Civil Procedure applicable to the proceedings before Court of Small Causes to the extent provided under the Code. The Rules of practice applicable to the Civil Courts as per Karnataka Civil Rules of Practice framed by the State in exercise of powers conferred by Section 122 of CPC, are also applicable to Courts of Small Causes. Thus though the phrases ''Court of Small Causes'', Civil Court'' and ''City Civil Court have been defined in the respective enactments, it is only for the purpose of institutional distribution of suits involving disputes of civil nature amongst these designated Courts subject to place or area within which the causes of action for the institution of suit arises. Thus, the Court of Small Causes is essentially a Civil Court, remains a Civil Court and it is not as though it is one to be excluded from the purview of the phrase Civil Court''. In conclusion Full Bench has held as under:

(1) The opinion of the Division Bench that Court of Small Causes can take cognizance only of such suits which are filed seeking ejectment of tenants of the premises to which KR Act applies runs contrary to the provisions of said Act as such it does not lay down correct law. In respect of the premises to which KR Act is applicable, only the ''Court'' specified under clause (c) of Section 3 of KR Act along is competent to make order for recovery of such premises on the landlord proving any one or more grounds enumerated therein.

(2) In the context of jurisdiction of Small Causes Court, a suit for recovery of possession of immovable property does not include a suit for ejectment as such, a suit for ejectment is distinct and different from suit for recovery of possession of immovable property or for recovery of any interest in such immovable property.

(3) In the context of jurisdiction of Court of Small Causes to take cognizance of a suit for ejectment, recovery of mesne profits would not amount to either recovery of an interest in the immovable property or determination or enforcement of any other right or interest in the immovable property, and the Court of Small Causes is competent to consider prayer for mesne profits against non-statutory tenant after termination/determination of lease subject to its pecuniary jurisdiction. The contrary view expressed by the Division Bench in this regard does not lay down correct law.

(4) Court of Small Causes have jurisdiction to take cognizance of not only a bare suit for ejectment but also a suit for ejectment with a prayer for recovery of mesne profits or damages, subject to its pecuniary limits, in respect of the premises to which KR Act is not applicable. The interpretation placed by the Division Bench in Sarojamma''s case, on clause (b) of Article 4 of Schedule to KSCC Act does not lay down the correct law.

(5) The suits for ejectment with or without prayer for rent, mesne profit or damages, pending before the Civil Courts, either upon representation of plaints pursuant to decision in Sarojamma''s case, or presented afresh after Sarojamma''s case, the value of the subject-matter of which is within the pecuniary limits of the Court of Small Causes, shall be transferred to the Court of Small Causes, which on receipt of such records shall proceed from the stage at which they were pending before Civil Court and dispose them of in accordance with law.

(emphasis supplied by me)

Insofar as the present lis is concerned, the answer to the contentions raised by learned Advocate appearing for the defendant can be discerned from sub-paragraph (3) above referred to of Abdul Wajid''s case whereunder it has been held that Court of Small Causes can take cognizance of a suit for ejectment, recovery of mesne profits and it is competent to consider such claim subject to pecuniary jurisdiction. It is also held that contrary view of the Division Bench does not lay down correct law. In the instant case, the plaintiff has instituted a suit for possession of the suit schedule property by issuance of notice dated 18.08.2011 and terminating the tenancy thereunder. In view of the law laid down by the Full Bench contentions raised by Sri Devanand, learned Advocate appearing for defendant cannot be accepted and it stands rejected and it is held that neither Section 2(3)(g) of Karnataka Rent Act, 1999 would bar the jurisdiction of the Small Causes Court to entertain a suit for ejectment and mesne profits nor Section 8 of the Small Causes Court Act.

Insofar as contention regarding the notice of determination of tenancy being improper, does not hold water and it is liable to be rejected for the reasons stated herein below.

In the plaint, it has been alleged by the plaintiff that tenancy was month to month. Notice determining the tenancy came to be issued on 18.08.2011 as per Ex. P-2 it is no doubt true in the reply notice it has been contended by the defendant about improper termination of tenancy. However, no such plea had been raised in the written statement filed before the trial Court. Notice issued under Section 106 of Transfer of Property Act, 1882 determining the tenancy mandates compliance of two conditions namely, (1) it should contain 15 days notice i.e., it must give 15 days clear time for the tenant to vacate and (2) the date to quit must expire after the 15th day, after the end of the tenancy. Section 106 of Transfer of Property Act, 1882 having been amended in 2002, would indicate that under sub-section (2) of Section 106 of Transfer of Property Act, 1882, 15 days period commences from the date of notice. Even otherwise, sub-section (3) of Section 106 of Transfer of Property Act, 1882 would indicate that notice issued under sub-section (1) would not be invalid or such termination would not be improper on account of the period mentioned therein would fall short of the period specified under that subsection. In the instant case, as noticed herein above, plea with regard to improper determination of tenancy had not been raised in the written statement and as such, the defendant is estopped to contend that there is improper termination of tenancy. Hon''ble Apex Court in the case of Dharmpal v. Harbans Singh reported in (2006) 9 SCC 216 has held as under:

Learned counsel for the appellant xxx in urging the pleas. However, still we feel that the appellant cannot be allowed relief. Law is well settled that an objection as to the invalidity or insufficiency of notice under Section 106 of the Transfer of Property Act should be specifically raised in the written statement failing which it will be deemed to have been waived. In the present case, the only objection taken in the written statement is that the notice issued by the plaintiff was "illegal, null and void and ineffective upon the right of the defendant". The thrust of the pleas raised by the defendant-appellant in his written statement was that the notice was issued by the person who did not have the authority from the landlord to give the notice. The pleas so taken has been found devoid of merit by the High Court and the court and the courts below. The plea that the notice was insufficient in the sense that it did not give 15 clear days to the tenant to vacate or that the notice did not terminate the tenancy with the expiry of the month of the tenancy, has not been taken in the written statement. Even otherwise sub-section (3) of Section 106 would indicate that mere short of period would not invalidate such termination. In view of the above discussion, the contention raised by Sri Devanand cannot be accepted and it stands rejected.

With regard to plea of the Karnataka Rent Act being attracted and suit in question could not have been adjudicated by Court of Small Causes cannot be accepted for reasons more than one. Firstly, Full Bench of this Court in ABDUL Wajid''s case referred to supra has categorically held that Small Causes Court has jurisdiction to entertain the suit for recovery of possession and mesne profits subject to the pecuniary jurisdiction. Undisputedly, in the instant case, the rate of rent of the schedule premises is Rs. 2,500/- per month and the relief sought for is valued at Rs. 30,000/- (12 months rent) and the pecuniary jurisdiction of the Small Causes Court being upto Rs. 1 lakh, I am of the considered view there is no merit whatsoever in the contention that small Causes Court has no jurisdiction and as such, it stands rejected. Secondly, it is to be noticed that suit schedule premises is measuring more than 14 sq. mtrs. or in other words, it actually measures 414 sq. ft. which is above 14 sq. mtrs. and in view of Section 2(3)(g) of Karnataka Rent Act, 1999 excluding the jurisdiction of Rent Court from entertaining eviction petition under said Act in respect of a commercial premises having plinth area more than 14 sq. mtrs., I am of the considered view that suit filed by plaintiff for possession and mesne profits was well within the jurisdiction of Small Causes Court to adjudicate the same.

Hence for the reasons aforestated, I am of the considered view that there is no infirmity or any material irregularity that has occurred calling for exercise of revisional jurisdiction by this Court. Hence, point No. 1 is answered in the negative viz., against the revision petitioner-defendant. RE: POINT No. (2):

For the Reasons aforestated, following order is passed:

(1) Revision petition is hereby dismissed.

(2) Judgment and decree passed by Small Causes Court, Bangalore in S.C. No. 15235/2012 dated 03.07.2013 is hereby affirmed.

(3) No costs.

(4) Revision petitioner-defendant is granted time upto 31st January, 2014 to deliver vacant possession of the schedule premises to the respondent-plaintiff.